Vaccine lawsuits – overview of litigation across the USA

The goal of this overview is to tell you about vaccine lawsuits in the federal and state courts (but not in the National Vaccine Injury Compensation Program). As an overview, the discussion of each case will be very short. If you want more information, please let me know in the comments section. If you know of cases I have missed, also mention that in the comments.

The vaccine lawsuits overview is arranged by topic, and without topic by states, and within states in alphabetical order. I have chosen August 1, 2016 as a starting point to keep this manageable.

Note that the “claims” section provides a summary of what a complaint is claiming – what it is trying to do – and not an analysis of the claims’ validity. Where available, I link to a post discussing the claim’s merits more in detail. Where not, I add some comments about the validity. But the claims section just provides what the plaintiffs are claiming – it doesn’t mean their claims, hold water.

It violates equal protection because it’s applied inconsistently – for example, distinguishing between children with and without Individualized Education Program (IEP); grandfathering children with exemptions that are not at a checkpoint.

The implementation of the act is problematic because of differences in interpreting the IEP provision and the project to oversee medical exemptions.

Vaccines are unavoidably unsafe and very dangerous, so the law is bad.

SB277 was passed for corrupt monetary reasons, not to protect children.

Procedural Profile: On October 21 State Judge Gregory Alarcon sustained the state’s demurer – in other words, dismissed the case as not stating a valid legal claim. The plaintiffs appealed to California’s Second Court of Appeals. After some delay due to procedural mistakes on their part, the appeal is set to go forward.

Issue: Does SB277 force parents to choose between two constitutional rights?

Main Claims:

Unconstitutional conditions – SB277 forces children and parents to choose between their constitutional right to education and their right to bodily autonomy (for the children) or their parental rights (for the parents).

Comments: The leader of A Voice for Choice – the organization bringing the lawsuit – announced that her organization will file a claim in state court rather than appeal the decision. I have not seen that suit yet.

Florida

Issue: Can a Bishop refuse to allow unvaccinated children into Catholic private school after parents file a religious exemption?

Main Claims:

Florida law requires that private schools accept religious exemptions, if filed. Parent filed religious exemption. Bishop does not have a right to refuse the child attendance because the child is unvaccinated.

Procedural Profile: Motion to dismiss granted at trial level on the ground that the Church’s autonomy is protected under the first amendment, and a statute cannot compel the church to accept unvaccinated children if accepting them is again the church’s religious tenets. Appeal filed. Oral argument heard on October 21, 2016, decision not in yet.

Comments: Note that this means that private schools that do not have religious objections to accepting unvaccinated children cannot reject them, under Florida’s law as interpreted by plaintiff and the court.

The mandate is illegal because NYC does not have the authority to mandate additional vaccines.

The mandate is illegal because the Department of Health overstepped its authority under Boreali, the case that sets when an agency’s policy making is legitimate or crosses over into what should be the state legislature’s prerogative.

Procedural Profile: Mandates struck down by trial judge on the grounds that the City’s board did not have the authority to add mandates beyond what the state’s legislature put in place. Appellate Division disagreed, but struck down mandate as violating Boreali, as the board engaged in illegitimate policy making.

City was granted leave to appeal to New York’s Court of Appeals, the highest court in the state, and case under review by that court.

Vaccine injury claims:

Federal

There are a number of vaccine lawsuits against Merck claiming injury from the shingles vaccine in federal district court in PA. I haven’t tracked them all down yet. One claim is Dotter and Green-Payne v. Merck, 16-cv-4686, in the Eastern Federal District Court for Pennsylvania. The claims are just like the Bentley suit below, but the injury is different.

There are attached claims for damages by people claiming harm from the misrepresentation.

Timeline:“FACT DISCOVERY SHALL BE COMPLETED BY 3/1/2017. ALL EXPERT DISCOVERY SHALL BE COMPLETED BY 10/31/2017. ALL DISPOSITIVE MOTIONS SHALL BE FILED AND SERVED ON 12/20/2017. PLAINTIFFS SHALL FILE AND SERVE THEIR MOTION FOR CLASS CERTIFICATION BY 3/1/2018. DEFENDANT SHALL FILE AND SERVE ITS OPPOSITION TO CLASS CERTIFICATION BY 4/5/2018”

The DeStefano study is the only MMR-autism study in United States children and is therefore central to the causation question. It was used to help reject the Hazelhurst case in the Omnibus Autism Proceeding.

Dr. Thompson’s testimony is the only way to learn the CDC, on which defendants are relying to say vaccines don’t cause autism, is unreliable, and hence, refusing it was arbitrary and capricious.

It’s in the public interest to expose wrongdoing by CDC (though how testimony in sealed cases would do that is not quite clear).

Benefit to Yates outweighs CDC’s interest in not allowing Thompson to testify – he deserves generous compensation if harmed by vaccines according to the National Childhood Vaccine Injury Compensation Act, and failure to provide VIS and informed consent is a central issue there (though how Thompson’s testimony is relevant to a failure to provide VIS, if that happened, is also unclear).

Comments: I don’t think the argument is very strong here. First, causation-wise, there are enough studies on MMR and autism that the 2004 DeStefano study doesn’t add much (and the Jain study is another United States MMR study, so the claim that DeStefano is the only United States MMR study is incorrect; not that it’s clear why it’s relevant – MMR was given in other countries, too). Second, isolated autism is not regression – that’s a misunderstanding of the study. It’s a little unclear if Yates also had hearing loss (pdf), which would take him out of the category of isolated autism. It’s possible he is in that category, though. Even then, the claim is weak, since the isolated autism finding was in the original paper – not hidden – and could have been addressed before. They don’t need Thompson for that. The question of MMR/autism causation can be addressed completely without him.

Nor do the claims negate the other points by the CDC: the data is available and in the hands of, say, Brian Hooker, and the government shouldn’t intervene in private litigation, and so forth.

Tennessee

Hazelhurst v. Jackson Clinic:

This is one out of seven cases brought by the Hazelhurst family, in this case, against their doctors for alleged harm from his vaccines. I could not see the suits since the family, apparently, asked that they be sealed.

Editor’s note – this article will be updated as more information and additional vaccine lawsuits comes up.

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This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.